Update on Immigration Executive Order

June 29, 2017

Gibson Dunn previously issued several client alerts regarding President Trump’s January 27, 2017 and March 6, 2017 Executive Orders restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes.[1]

This alert addresses implementation of the Supreme Court’s June 26, 2017 ruling allowing the travel ban to go partially into effect. The executive branch has indicated it will begin enforcing the order as of 8 pm ET, June 29, 2017. The most current information indicates this will primarily impact those applying for visas, not those travelling on existing visas.

Experience suggests that individuals attempting to board U.S.-bound aircraft, or arriving in the United States, may nonetheless encounter some difficulties.

I. Background

On January 27, 2017, President Trump issued the first Executive Order restricting entry into the country for individuals from seven specified nations, as well as related changes to visa and refugee programs. Multiple courts enjoined implementation of most major aspects of that order, including the entry ban.

On March 6, 2017, the President issued a new Executive Order, rescinding in full the January Order, but providing for a ban on entry of individuals from six specified nations, and suspension of the refugee program, among other changes. The revised order was narrower in certain respects, notably in removing Iraq from the list of impacted countries, and more clearly defining certain exceptions to the Order, such as the exception of dual citizens from the ban.

Courts again blocked implementation of the major provisions, this time before it went into effect. Ultimately both the Fourth Circuit (sitting en banc) and the Ninth Circuit upheld injunctions issued by the District of Maryland and the District of Hawaii, respectively.[2]

The government asked the Supreme Court to reverse the lower courts’ order blocking implementation, as well as to grant certiorari to hear the merits of the case.

II. Supreme Court Action

On June 26, 2017, the Supreme Court issued an order allowing certain aspects of the the March Executive Order to be implemented.[3] Separately, the Court granted certiorari and added the case to its calendar for the term beginning in October.[4]

The Court’s order stayed implementation of the lower court injunctions in part, allowing the government to enforce the ban "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States," but continued to block enforcement against individuals who do have such ties.

The Court provided some guidance on what it means to have a "bona fide relationship with a person or entity in the United States":

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order.] The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid § 2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.[5]

III. Practical Implications

It appears that the most immediate impact will be in connection with the issuance of new visas, rather than the use of a visa that was issued prior to 8 pm ET on June 29, 2017. Certain categories of individuals are exempt from the ban based either on the terms of the March Executive Order itself or the State Department guidance implementing the Supreme Court’s decision. Those are outlined below.

Notwithstanding the clear language of the Executive Order, it is difficult to predict whether those travelling on existing visas will run into difficulties in trying to board U.S.-bound flights or upon attempting to enter upon arrival.

A. Who Is Covered By The Ban And Who Is Not?

As a reminder, the March Executive Order barred entry to the United States by nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. (Iraq was not included in the second Executive Order.) On its face, the March Executive Order already excluded from the ban:

Nationals from those countries who are travelling on a passport from a country not included on the list;

Now the Court has created another exception for those with a "bona fide relationship with a person or entity in the United States." The primary question at this point is what qualifies as, and what is needed to prove, such a relationship.

The State Department issued a cable on June 28, providing guidance about handling visa applications, and has also posted a similar FAQ.[7] This cable gives some indications of how the government will interpret the March Executive Order, as narrowed by the recent Supreme Court order.

The following additional categories of people are now exempt from the ban:

Anyone who qualifies for a non-immigrant visa in a "classification other than B, C-1, D, I or K" because that eligibility inherently establishes the required relationship. "Derivative" applicants are also exempt (i.e., certain immediate family members of the main applicant).

Individuals who have been grantedasylum, refugees already admitted to the United States, and individuals already granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Otherwise, eligibility has to be established according to the following criteria:

For family-based eligibility, the only relationships that qualify are "close family," which the State Department is defining as parents, parents-in-law, spouses, children (including adults), sons- and daughters-in law, and siblings (including half-siblings). No other relationships qualify.

UPDATE (6/30/17): As the ban was going into effect, the Departments of State and Homeland Security added fiancés to the list of qualifying categories.

For entity-based eligibility, the standards are less clear, and largely parrot those in the Supreme Court’s order. The following are specifically exempt from the Executive Order:

Media ("I") visa applicants employed by an organization with a U.S. news office;

Students admitted to a U.S. educational institution;

Workers who have "accepted an offer of employment from a company in the United States;" and

"Lecturer[s] invited to address an audience in the United States."

The State Department specifically noted that "a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States."

In the event an applicant is not exempt, he or she may still be eligible for a waiver. The State Department indicated that travelers in the following categories may be eligible for a waiver:

Individuals who "previously established significant contacts with the United States but [are] outside the United States on the effective date of the" Order;

Travel for "significant business or professional obligations," which would be "impair[ed]" by the denial of entry;

Small children, adoptees, and those needing medical care; and

Those travelling for certain international organizations.

B. Practical Tips

Without further clear guidance about how travelers (as opposed to visa applicants) will be treated under this system, those who may be affected and are travelling in the near future should collect and carry clear documentation of the purpose of the trip if that documentation might help to show a "bona fide relationship" with people or entities in the United States. For example, for work-related travel, employment offer letters, conference agendas listening the traveler as a speaker, invitations to a business meeting, and the like may be helpful in the event of questions from immigration officials. However, the Court made clear that the supporting documentation must show "ordinary course" relationships, and not relationships that appear to have been created for the purposes of fitting within the narrowed scope of the injunction.

As suggested in Gibson Dunn’s earlier alerts on these topics, companies will want to consider effective planning and communication with employees and partners who may be affected by implementation of the Executive Order.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or any of the following: